Military Memorials of National Significance Bill 2008

Bills Digest no. 95 2007–08

Military Memorials of National Significance Bill
2008

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The purpose of the Bill is to
provide a mechanism that will enable a memorial which is located
outside the Australian Capital Territory (ACT) and meets specified
criteria, to be recognised as a Military Memorial of National
Significance.

The National Memorials Ordinance 1928 (the
Ordinance) was enacted under the Seat of Government
(Administration) Act 1910.[1] The Ordinance formally established the
National Memorials Committee with the Prime Minister as Chairman.
The Committee's role is to consider and approve (or reject)
submissions relating to the location and character of national
memorials on national land in the ACT.

Section 27 of the Australian Capital Territory (Planning and
Land Management) Act 1988 empowers the Minister[2] to declare specified
areas of land in the ACT to be national land in circumstances where
the land is, or is intended to be, used by or on behalf of the
Commonwealth.

The National Memorials Committee only examines proposed
memorials on national land . The Committee has no authority to
consider proposed memorials which are located elsewhere. A memorial
built on land which is not national land , may be referred to as
being national in character. However, under the current state of
the law, it could not be officially recognised as having national
significance in the same way that a memorial on national land
would.

The Ordinance, and consequently the National Memorials
Committee, does not govern the funding of national memorials which
are not located on national land .

Section 83 of Australia's Constitution provides that
'no money shall be drawn from the Treasury of the Commonwealth
except under appropriation made by law'. This means that the
Commonwealth cannot authorise the funding of things such as
national memorials, unless the Parliament has authorised the
expenditure by an Act of Parliament. For example, the Australian
War Memorial is established as a corporation by the Australian
War Memorial Act 1980 which sets out the functions of the
Australian War Memorial and its governance. According to its Annual
Report, the Australian War Memorial s primary funding is by way of
government appropriation.[3]

Alternatively, funding may be available through programs such as
the Commemoration
of Historic Events and Famous Persons (CHEFP) grants
program (sponsored by the Department of the Environment, Water,
Heritage and the Arts). CHEFP is designed to commemorate people,
events and places of national historical significance.

Eligible projects may include:

the conservation of graves of people of national historic
significance, and

the construction and conservation of monuments, plaques and
statues that commemorate people, events and places of national
historical significance.

It is a modest program with many projects receiving around $5000
each payable to eligible not-for-profit bodies that are legally
incorporated in Australia and local government authorities.

The Australian
Ex-Prisoners of War Memorial (the Ballarat Memorial) was
completed and dedicated on 6 February 2004. The names of more than
35,000 Australian Prisoners of War (POWs) are etched into a 130
meter long black granite wall in alphabetical order, grouped by
conflict, commencing with the Boer War through to the Korean
War.[4]

The monument, designed by sculptor Peter Blizzard, is intended
to provide former POWs, their descendants, visitors and future
generations with a reflective experience. However, although in its
themes, character and execution it could be called national it is
not currently recognised as a national memorial .

There has been considerable debate about whether the Ballarat
Memorial is a national memorial since the then Member for Ballarat,
Mr Michael Ronaldson, announced in 1999 that the town would be the
site of an Australian Ex-Prisoners
of War Memorial. He stated then that the Memorial would have
national status, though
it would not be called a national memorial .[5]

In essence, the group which had been the driving force behind
the project believed that the Ballarat Memorial was a national
memorial for the following reasons:

Former Assistant Treasurer, Senator Rod Kemp, had referred to
the memorial as a national memorial to be erected in the City of
Ballarat when he announced that gifts to the value of $2 or more to
the Australian Ex-Prisoners of War Memorial Fund would be tax
deductible.[6]

The project had received Commonwealth funding in the amount of
$200,000 prior to its completion,[7] and further promises of funding were made during
the election campaign of 2004 by both parties.[8]

It was the first memorial to prisoners of war that specifically
honoured all Australian POWs both living and dead from all
conflicts. It was considered that it could not be a local memorial
if it carried the names of POWs from all over Australia.[9]

The only other memorial to POWs is the Changi Chapel which was
not accessible to the public and was directed solely at POWs
interned by the Japanese.[10]

The project had the full support of the National Executive of
the Ex-POW Association of Australia.[11]

The arguments by the former Government against
this proposition were as follows:

The Ballarat Memorial would complement other major POW
memorials, including the Government established memorials at
Hellfire Pass in Thailand and Sandakan in Malaysia as well as the
National Prisoner of War Memorial, Changi Chapel, which is located
in the grounds of the Royal Military College, Duntroon,
Canberra.[12]

This Bill delivers on Labor s promise that the
Ballarat Memorial will become a Military Memorial of National
Significance . However, whilst formal recognition will bring with
it greater status, of greater concern to those concerned with the
Ballarat Memorial is the issue of formal, on-going, Commonwealth
funding.[17]

The debate about the continued funding of the Ballarat Memorial
commenced shortly after its opening in February 2004. It was
sparked by the Ballarat City Council s request for an extra
$500,000 from the Federal Government towards upkeep and
maintenance.[18]

The former Government was unwilling to make a commitment to the
funding for the Ballarat Memorial, despite claims that the local
community was desperate for funding for ongoing maintenance and
security issues [in relation to the Ballarat Memorial].[19]

According to the Explanatory Memorandum, the Bill has no
financial impact.[20]

However, it should be noted that the Government has provided
$160,000 in Federal Government funding to help preserve the
Ballarat Memorial.[21] The funding was said to fulfil the Government s
commitment to recognising the memorial s significance and would
help fund memorial maintenance over the next four years.[22]

Part 2 of the
Bill relates to the declaration of Military Memorials of
National Significance.

Subclause 4(3) sets out the
criteria for determining whether a memorial is a Military Memorial
of National Significance as follows:

The scale, design and standard of the memorial is appropriate
for the memorial to be considered nationally significant and the
memorial is appropriately dignified and symbolic: paragraph
4(3)(a).

The sole purpose of the memorial is to commemorate Australia s
military involvement in a significant aspect of Australia s wartime
history: paragraph 4(3)(b).[23]

The memorial has a major role in community commemorations:
paragraph 4(3)(c).

Commonwealth flag protocols
are observed in relation to the memorial: paragraph
4(3)(d).[24]

The memorial is owned or managed by a State or Northern
Territory authority that has responsibility (including financial
responsibility) for the ongoing maintenance of the memorial, and
for any refurbishments: paragraph 4(3)(e).Clause 3 defines the term State or Northern
Territory authority being :

a State or the Northern Territory or

a local government body, or other authority, established by or
under a law of a State or the Northern Territory.[25]

The memorial is on public land within a State or the Northern
Territory: paragraph 4(3)(g).

It is publicly accessible and there is no entry fee:
paragraph 4(3)(h). According to the Explanatory
Memorandum, the memorial is to be accessible on a daily basis with
the possible exception of certain public holidays such as Christmas
Day and Good Friday.[26]

The memorial must be completed and functioning as a memorial at
the time that the application is lodged: paragraph
4(3)(i).

It is not associated with a commercial function that conflicts
with its commemorative purpose: paragraph 4(3)(j).
According to the Explanatory Memorandum, this does not preclude a
memorial which is associated with a commercial endeavour, such as a
bookshop or caf as long as the commercial endeavour is ancillary to
the memorial.[27]

Subclause 4(1) provides that the
Minister[28] may,
by notice published in the Gazette, declare a memorial to be a
Military Memorial of National Significance if the above criteria
are met. In addition:

an appropriate application for the memorial to be so declared
has been made and

the Prime Minister has agreed in writing to the making of the
declaration.[29]

Under subclause 4(4) neither the notice
published in the Gazette nor the written agreement by the Prime
Minister are legislative instruments within the meaning of the
Legislative Instruments Act 2003. They will not,
therefore, be put before the Parliament and will not be subject to
disallowance.

Clause 5 provides that the Minister may
approve, in writing, an alteration to a Military Memorial of
National Significance provided that:

an appropriate application has been made and

the Minister is satisfied that the memorial will continue to
meet the criteria set out in subclause 4(3).

Subclause 5(2) provides that the Minister s
written approval is not a legislative instrument within the meaning
of the Legislative Instruments Act 2003. It will not,
therefore, be put before the Parliament and will not be subject to
disallowance.

Clause 6 provides that the Minister may,
subject to agreement in writing by the Prime Minister, revoke a
declaration that a memorial is a Military Memorial of National
Significance in circumstances where:

the Minister is satisfied that the memorial does not meet the
criteria in subclause 4(3) or

an alteration has been made to the memorial since the
declaration was made and the Minister has not approved the
alteration under clause 5.

The revocation is made by notice published in the
Gazette. In that case according to subclause 6(2),
neither the notice, nor the written agreement of the Prime
Minister, are legislative instruments within the meaning of the
Legislative Instruments Act 2003. They will not,
therefore, be put before the Parliament and will not be subject to
disallowance.

Subclause 7(1) provides that an
application may be made for a memorial to be declared to be a
Military Memorial of National Significance or for approval of an
alteration to such a memorial. The application must be in
accordance with the relevant regulations: subclause
7(3).

Part 3 of the Bill contains
miscellaneous provisions.

Clause 9 provides that the
Commonwealth does not have any responsibility, whether financial or
otherwise, for a memorial merely because it has been declared a
Military Memorial of National Significance under clause 4.

Clause 10 provides that the
Governor-General may make regulations which will give effect to the
contents of the Bill, for example, in relation to the content and
form of applications for declaration.

The Explanatory Memorandum states that the Bill will provide a
mechanism to honour the Government s election commitment to declare
the Ballarat Memorial to be a national memorial.[30] Certainly, subclause
4(2) of the Bill which provides that no formal application
for declaration needs to be provided in respect of the Ballarat
Memorial is recognition of this commitment.

However, the contents of both paragraph 4(3)(e)
and clause 9 should be noted. Both of those
clauses indicate that the Commonwealth denies responsibility,
financial or otherwise, for a memorial which has been declared (or
is seeking to declared) a Military Memorial of National
Significance .

As already stated, the Government has delivered funding for
maintenance of the Ballarat Memorial for the next four years.
However the Bill is silent on the issue of further funding
thereafter.

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Feedback is welcome
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concerns or complaints should be directed to the Parliamentary
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[1]. After the
Australian Capital Territory became a self-governing territory in
1988 a number of ordinances that relate to the operations of the
Commonwealth were reserved as Commonwealth laws. This is one of
them.

[2]. Section 19A of the Acts Interpretation Act
1901 states that if a provision of an Act refers to a Minister
by using the expression the Minister without specifying which
Minister is referred to then the reference is a reference to the
Minister who administers the provision in respect of the relevant
matter. In this case it is the Minister for Finance and
Deregulation.

[8]. $150,000 by Senator Mark Bishop, then Shadow Minister
for Veterans Affairs on behalf of the ALP in a Press
Release on 7 September 2004, and $300,000 by then Treasurer
Peter Costello on behalf of the Coalition in a door stop
interview on 7 October 2004.

[9]. Lachlan Grant, What makes a National War Memorial? The
Case of the Australian Ex-POWs Memorial , Public History
Review, Vol. 12, 2006, pp. 92-102 at p. 94.

[23]. Memorials in the form of roads, bridges, public
swimming pools, halls or gates would not be declared a Military
Memorial of National Significance because they also serve another
purpose. Explanatory Memorandum, p. 2.

[24]. These include rules about flying the flag
(including flag raising ceremonies), the order of precedence of the
Australian flag in relation to other national flags, the
circumstances in which the flag can be flown at half mast, and the
use of the flag at funerals.

[25]. Note that the Australian Capital Territory (ACT)
is excluded because national memorials in the ACT are already
covered by the National Memorials Ordinance 1928.

Paula Pyburne
1 May 2008
Bills Digest Service
Parliamentary Library

This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.

This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.

Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.